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Judges who will hear arguments on GHG rules have history with global warming

The three judges who will assess the legality of U.S. EPA rules aimed at regulating greenhouse gas emissions have a history when it comes to climate change.

The U.S. Court of Appeals for the District of Columbia Circuit revealed yesterday the three judges who will weigh the four rules, including the so-called "endangerment finding" that concluded carbon emissions were harmful and therefore needed to be regulated (E&ENews PM, Nov. 2).

The judges are Chief Judge David Sentelle, a conservative appointed by President Reagan, and two Clinton appointees: Judge Judith Rogers and Judge David Tatel.

All three had some involvement when the court tackled Massachusetts v. EPA, the case that -- once it went up to the Supreme Court -- ultimately gave EPA the authority to regulate carbon emissions.

Lawyers familiar with the litigation over the rules say the panel probably favors EPA based on each judge's record in environmental cases and regulatory cases in general.

"Bad news for petitioners," said one lawyer involved in the litigation within hours of the announcement.

While Sentelle might be responsive to the petitioners' arguments, Tatel and Rogers are less likely to be, even though they have shown a willingness to rule against agencies in the past, court-watchers agree.

Tatel "is a brilliant and moderate-liberal judge, while Rogers "has tended to be sympathetic to environmental claims," another lawyer familiar with the litigation said.

Sentelle and Tatel were both on the D.C. Circuit panel that, back in 2005, handled Massachusetts v. EPA.

On a 2-1 vote, the court ruled against states that were seeking EPA action on global warming. Sentelle was in the majority, while Tatel was the dissenter.

Sentelle wrote a concurring opinion in which he argued that Massachusetts and other states did not have standing to sue. In his dissent, Tatel adopted the rationale that the Supreme Court eventually adopted in its 5-4 ruling by Justice John Paul Stevens.

Under the Clean Air Act, EPA does have the authority to regulate carbon emissions because the act says "any air pollutant" that endangers human welfare is covered, Tatel wrote.

Rogers was not directly involved in deciding that case, but she later joined Tatel when he again dissented a few months later, after the full D.C. Circuit declined to rehear Massachusetts v. EPA.

In his dissent from the denial of rehearing, Tatel stressed his view that the case should be considered an issue of "exceptional importance" under the court's precedents.

"Indeed, if global warming is not a matter of exceptional importance, then those words have no meaning," he wrote.

Overall, the panel "will examine the arguments fairly but rigorously," said Jonathan Adler, who heads the Center for Business Law and Regulation at Case Western Reserve University School of Law.

"This may appear to be a panel predisposed to support the EPA, but it is also a panel that is not likely to let the EPA get away with slipshod arguments," he added.

No one expects the panel to approach the four different rules in the same way. While most legal observers think EPA's arguments in defense of the endangerment finding, for example, are persuasive, it may have bigger problems elsewhere.

The "tailoring" rule, which interprets the Clean Air Act in such a way that only major polluters are required to obtain permits for greenhouse gas emissions, is the one that is viewed to be most vulnerable. Critics say it essentially rewrites the Clean Air Act.

"The tailoring rule is more problematic" for EPA, said William Funk, a professor at Lewis & Clark Law School in Portland, Ore.

He noted that Rogers, in particular, "could go either way."

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